By Scott Malone
BOSTON (Reuters) - The U.S. Court of Appeals on Thursday removed a lower court judge from the murder case of accused mobster James "Whitey" Bulger, saying in a rare step that the official's prior role as a prosecutor called his impartiality into question.
An attorney for the alleged former leader of Boston's "Winter Hill" crime gang had asked the appeals court to remove U.S. District Judge Richard Stearns from the case because Stearns had worked in the U.S. Attorney's Office in Boston when prosecutors were developing the case against Bulger.
"It is clear that a reasonable person would question the capacity for impartiality of any judicial officer with the judge's particular background in the federal prosecutorial apparatus," First Circuit appeals court Associate Justice David Souter wrote in his decision.
Now 83, Bulger is facing trial on charges that he committed or ordered 19 murders in the 1970s and '80s. He has pleaded not guilty to all charges and faces the possibility of life in prison if convicted.
Stearns had worked in the U.S. Attorney's Office in Boston in the 1980s, when the FBI was investigating Bulger's alleged role as leader of a largely Irish-American crime gang.
The case stands as something of a black mark on the history of Boston law enforcement, with FBI officials and prosecutors having turned a blind eye to the alleged crimes of Bulger's gang while focusing on rival crime organizations.
Bulger says he received immunity from former Assistant U.S. Attorney Jeremiah O'Sullivan, who died in 2009.
Bulger's lawyer, J.W. Carney of Carney & Bassil, surprised observers of the case last month when he said his client had never served as a government informant. He declined to say why a prosecutor would have given Bulger immunity if not in exchange for information.
"It has always been our intention to have James Bulger testify at trial and explain to the jurors how he operated for over 25 years in Boston without a single charge by federal prosecutors," Carney said on Thursday. "This will include direct and corroborating evidence that he received immunity, and that it was not because he was an informant."
He said he planned to call witnesses including unnamed judges and an FBI director. Robert Mueller, the current head of the bureau, also worked at the U.S. Attorney's Office in Boston during the Bulger investigation. He and Stearns are said to be friends, according to court papers.
It is rare for a judge to be pulled from a criminal case, in part because it is a risky request for a defense attorney to make, said Robert Bloom, a professor at Boston College Law School.
"It's not necessarily thought of as a wise strategy unless you have some really good arguments to make," Bloom said. "If they lose on that they usually then have to have their case tried before that judge."
Bulger's trial had been scheduled to start in June. The start could be delayed as a result of Stearns' removal, since when a new judge is assigned to the case, she or he will need to determine how much time is needed to prepare.
"We are hopeful that this opinion will not cause a delay, as it has always been our goal to try this case as soon as possible," said Carmen Ortiz, the current U.S. attorney in Boston. "The victims' families have waited long enough."
Stearns early this month had declared that he would rule before the trial began on whether Bulger's claim of immunity was valid, and suggested he had a dim view of it.
"Any grant of prospective immunity to commit murder was without authorization and is hence unenforceable under any circumstance," Stearns wrote in a March 4 decision.
Carney had wanted the immunity issue to be taken up at trial.
QUESTION, NO PROOF, OF BIAS
During the time that Bulger was under investigation, prosecutorial duties for organized crime had been split between the U.S. Attorney's Office in Boston and a second team, called the New England Organized Crime Strike Force.
Since the strike force had worked to develop the government's case against Bulger, Stearns had argued that his roles at the U.S. Attorney's Office did not compromise his impartiality.
Souter, a retired Supreme Court justice, noted that the two teams had not been "free from communication."
Souter said his decision reflected only that a person could reasonably question Stearns' impartiality, and did not represent a conclusion that Stearns was biased.
Stearns did not respond to a request for comment.
Bulger was arrested in 2011 following 16 years on the run after he fled Boston on a tip from a corrupt FBI agent that arrest was imminent.
His name was prominent on the FBI's "Ten Most Wanted" list and his case inspired Martin Scorsese's 2006 Academy Award-winning film "The Departed".
(Additional reporting by Svea Herbst-Bayliss; Editing by Dale Hudson, Gerald E. McCormick and Alden Bentley)